Excerpt: - .....consent to a divorce by her husband in a caste panchayat held for the purpose when there was a caste custom in the community to which the parties belonged, according to which a divorce can take place by mutual consent of the spouses.3.the learned single judge has found that the parties belonged to the community of patwas and that, according to the caste custom of the community, a divorce was possible by the mutual consentof the spouses. it was further pointed out that although the defendant-respondent had pleaded a very wide custom permitting a divorce by mutual consent of the spouses, the defendant did not allege or prove that in the case of minors or in the case of persons who had not reached the age of discretion according to the hindu law, no divorce was permissible even.....

Judgment:

Naik, J.

1. This is an appeal under Clause 10 of the LettersPatent against the judgment and decree of the Hon. Shri Justice T. C. Shrivastava, passed in Second Appeal No. 329 of 1957.

2. The only question that arises for consideration in this appeal is whether the plaintiff-appellant could validly consent to a divorce by her husband in a caste panchayat held for the purpose when there was a caste custom in the community to which the parties belonged, according to which a divorce can take place by mutual consent of the spouses.

3.The learned single Judge has found that the parties belonged to the community of Patwas and that, according to the caste custom of the community, a divorce was possible by the mutual consentof the spouses. It was further pointed out that although the defendant-respondent had pleaded a very wide custom permitting a divorce by mutual consent of the spouses, the defendant did not allege or prove that in the case of minors or in the case of persons who had not reached the age of discretion according to the Hindu law, no divorce was permissible even according to the custom of the caste. Consequently the learned single Judge held that the appellant-plaintiff, who was aged between 14 or 15 years at the time of the panchayat where the divorce had taken place, had validly consented to her divorce from the defendant-respondent. He also found that at the time of the divorce the plaintiff-appellant had reached sufficient maturity of understanding to comprehend the nature of tha act which she was doing.

4. In our opinion, no exception can be takento the aforesaid findings and consequently to the judgment in favour of the respondent-defendant because in the instant case:

(a) the Indian Majority Act had no application;

(b) the divorce was permissible under a custom of the caste to which the parties belong; and

(c) it had not been alleged nor proved that, notwithstanding the alleged custom, a minor wife who had reached maturity of understanding to comprehend the nature of the act which she was doing, could not validly consent to her divorce.

5. The learned counsel for the appellant-plaintiff however, contended that even though by virtue of Section 2 of the Indian Majority Act the capacity of any person to act in the matter of his or her divorce was not affected by the Act, she wouldstill be incompetent to give a valid consent to her divorce because she had not reached the age of discretion as provided in the Mitakshara School of Hindu Law. In our opinion, divorce is unknown to Hindu Law and is a creature of custom amongst communities in which it obtains. Consequently the case of the parties shall not be governed by the principles of Hindu Law but by the special custom of the community. As the custom pleaded and proved permits a divorce between Patwas with the mutual consent of the spouses, we see no reason how the question of the age of discretion under the Mitakshara School of Hindu Law would govern the case.

6. We, therefore, agreeing with the learned Single Judge, hold that according to a caste custom of the Patwa community to which the parties belong, the plaintiff-appellant could at the age between 14 or 15 years when she had attained sufficient maturity of understanding to comprehend the nature of the act she was doing, validly consent to her divorce from her husband in a caste panchayat held for the purpose and that a consent so given by her was binding on her according to the caste custom.